' MUHAMMAD ALI MAZHAR, J.---This criminal miscellaneous application has been brought to quash the proceedings of Special Case' No,3 of 2009 "State v. Asghar and others", arising out of Crime No,587 of 2008, lodged under sections 365-A 506/2, 216, 147, 148, 149, P.P.C. And 7, A.T.A., at Police Station, Ghotki.
2. Succinctly, the facts of the case are that on 28-12-2008complainant SIP Abdul Khaliq Kolachi lodged an F.I.R. On behalf of the State alleging therein that on 23-11-2008, Narjan Kumar Hindu and Farman Maganhar were kidnapped by the dacoits near Nandhoo Railway crossing. Such information was given by the heirs of the abductees to the complainant and such news was also broadcasted in media. The complainant contacted the family members of the abductees for lodging F.I.R. But they refused. Thereafter, complainant remained in contact with the family members of the abductees. On 13-12-2008 abductees Narjan Kumar and his driver Farman Maganhar were released after the payment of ransom amount of Rs,28,00,000. The complainant again asked the family members to lodge the F.I.R., but they clearly refused by saying that if they will lodge the F.I.R., they will be murdered by the dacoits. However, on the basis of verbal information from the abductees and their relatives, it revealed that Narjan Kumar and his driver Farman Maganhar had been kidnapped by the dacoits Haboo Korai, Zahid Lund, Papoo Maganhar, Asghar Gabole, Rahzan Khushk, Ghulam Hussain Lund, Arif Lund, Ali Muhammad Korai and two unidentified persons on the force of weapons and these dacoits released the abductees after receiving ransom in the sum of Rs,28,00,000.
3. In support of this quashment petition, the learned counsel for the applicants argued that the charge against the applicants is groundless and there is no probability of the applicants being convicted of any offence and the further proceedings will amount to abuse of process of the court.
He further argued that entire prosecution case against the applicants is based on sweeping allegations. The statement of an abductee Farman Manganhar and statements of relatives of another abdutee Narjan Kumar, namely, Hashmat Ram, Mukesh Kumar and Rajesh Kumar were recorded under section 164, Cr.P.C. By the Judicial Magistrate, Ghotki, but they did not implicate the applicants in the, case. The whole prosecution case is based on hearsay evidence and even there was no eye-witness of the incident and nothing was recovered by the police. He further argued that no FIR; was lodged by the abductees or their relatives and in the challan, no independent witness has been cited and all the witnesses in the challan are police officials. No identification parade was conducted and there was also no witness of any payment of ransom amount, therefore, the learned counsel submits that further proceedings in Crime No,587 of 2008 would be a futile exercise. He further argued that on the orders of the Additional Inspector-General of Police, re-investigation was conducted and the matter was assigned to SIP Pervez Ahmed, Crime Branch, Larkana Zone and during interrogation and investigation, he recorded statements of abductees under section 162, Cr.P.C., in which they clearly stated that they do not know about kidnappers and the Investigating Officer recommended the case to be disposed of under A-class and also recommended departmental action against the I.O. And complainant of the aforesaid crime. The learned counsel further pointed out that earlier an application under section 249-A, Cr.P.C. Was filed but it was dismissed in a slipshod manner, therefore, same applicants filed Criminal Miscellaneous Application No, D-501 of 2011 in this court, which was disposed of with the direction to the trial court to decide the application afresh after considering report dated 6-10-2009 which was submitted by SIP Crime Branch, Larkana Zone. The trial Court was also directed to pass well- reasoned order on the application moved under section 249-A, Cr.P.C. But after remand of the case, again the learned trial Court dismissed the application simply on the ground that names of the applicants are mentioned in the F.I.R., no evidence has been recorded as yet and the report of re-investigation is not binding upon the court.
4. The learned DPG for the State, though concedes that in earlier Criminal Miscellaneous Application, this court remanded the matter to the learned trial court to decide the application but he submits that the matter cannot be decided without recording evidence and he further argued that names of the applicants are mentioned in the F.I.R., therefore, at this stage possibility of their involvement in crime in question cannot be ruled out and instead of culminating the proceedings under section 249-A, Cr.P.C., it would be in the interest of justice that case should be tried properly and after recording evidence matter be disposed of.
5. We have examined the impugned order passed by learned Judge, ATC, Sukkur on 28-10-2011, in which the learned Judge, ATC observed that names of the applicants are mentioned in the F.I.R. It is further stated in the impugned order that the police officials recorded their statements under section 161, Cr.P.C., in which they stated that on 13-12-2008, when they were on patrolling, SIP-Abdul Khaliq Kolachi informed them that abductees Narjan Kumar and Farman Manganhar have reached at their home. Thereafter, they went to the house of abductees and both abductees disclosed that on 23-11-2008, they were abducted by dacoits, namely, Haboo alias Shafqat, Zahid Lund, Papoo Manganhar, Asghar Gabole, Rahzan Khushk, Ghulam Hussain Lund, Arif Lund, Ali Muhammad Korai, Ashique and one unidentified accused and their family members paid ransom amount of Rs,28 lacs to accused Hazooro, Yakoob Lund, Muhammad Ismail and Abdul Razak Gabole. So far as the re-investigation report submitted by Crime Branch, Larkana is concerned, the learned Judge, ATC observed that the police investigation report is not binding upon the court and same will be considered at the time of trial and since no witness has been examined as yet, therefore, he again dismissed the application.
6. Let us first discus the minutiae and niceties of section 249-A, Cr.P.C. Which empowers the court to acquit the accused at any stage of the case if after hearing the prosecutor and the accused and for the reasons to be recorded, court considers that the charge is groundless or that there is no probability of the accused being convicted of any offence. It is clear from the language embodied under section 249-A, Cr.P.C. That while deciding application in this particular section, court has to consider two crucial points, whether the charge is groundless or whether there is no probability of the accused being convicted of any offence. This provision gives right to accused person to move application for his acquittal at any stage of the proceedings which may be even A 'prior to framing of charge or recording of evidence or at any subsequent stage and there is no bar imposed by law conditional to stage of proceedings. In order to decide this application in true spirit and scope, it is necessary for the court to examine entire material available on record and hold in the order in case of acquittal that the charge is groundless or that there is no probability of the accused being convicted of any offence and in case of dismissal of application moved under section 249-A, Cr.P.C court should discuss the entire material available on record with probable cause on the basis of which reasonable grounds appear to continue the trial.
7. In the case in hand what we have seen that the learned Judge, ATC again passed the order without considering the material available on record including the statements of one of the abductees and statement of relatives of another abductee Narjan Kumar recorded under section 164, Cr.P.C.. And dismissed the application with further observation that the report of reinvestigation is not biding upon the court and the police officials recorded their statements under section 161, Cr.P.C., in which they implicated the applicants and their names are appearing in the F.I.R. If the learned Judge, ATC was of the view that at this stage, acquittal is not possible then he should have considered the entire material available on record and should have discussed with rationale as to why acquittal at this stage is not possible but neither the learned judge considered the effect and implication of statements recorded under section 164, Cr.P.C. In which abductee and their relatives did not implicate the applicants nor any exact findings have been incorporated in the order warranting the dismissal of application.
8. By enacting sections 249-A and 265-K, Cr.P.C., the Legislature in its wisdom did not leave the question of recording evidence as condition before taking action under either of the provisions and the use of expression at any stage of the case is indicative enough of the intention that any such stage could be the very initial stage, after taking cognizance or it could be a middle stage after recording some proceedings and/or even, it could be latter stage as well. If any authority is needed, one may refer to PLD 1999 SC 1063 (Muhammad Sharif v. State). Similarly, in another judgment reported in 1994 SCM R 798 (State v. Asif All Zardari), the honourable Supreme Court held that section 249-A, Cr.P.C. Empowers the Presiding Officer of the court to acquit the accused at any stage of the trial and only requirement to be fulfilled are firstly, that hearing is to be given to the prosecutor and counsel of accused and secondly, reasons to be recorded in support of conclusion that the charge is groundless or that there is no probability of accused being convicted.
It is very clear that the application can be filed at any stage of the proceedings and it is not necessary and there is no requirement that such application is to be filed after evidence of the witnesses is recorded.
9. It quite obvious and noticeable from the impugned order that while deciding application under section 249-A, Cr.P.C., the learned trial court failed to consider and appreciate material available on record and decided the application in a manner which is contrary to the very spirit and scope of section 249-A, Cr.P.C. Whether charge is groundless or not or probability of conviction is there or not, same can only be decided once the trial court considers the entire material available on record including the statements recorded under section 164, Cr.P.C. So far as the report of SIP, Crime Branch, Larkana zone is concerned, this is not a normal or routine report submitted under section 173, Cr.P.C. But it was a report based on re-investigation of entire matter, though the learned judge ATC brush aside and paid no attention to the report of reinvestigation by observing that it is not binding but at the same time, nothing has been discussed in the order regarding its text/recommendation as to why at this stage it is not inspiring confidence. The purpose of earlier remand was to give a fair opportunity to the applicants to argue their case and directions were also issued to the learned Judge, ATC to pass well-reasoned and speaking order but on the contrary application was again dismissed without considering the material available on record.
Though for acquittal under section 249-A, Cr.P.C., the court has to record the reasons in support of conclusion that the charge is groundless or that there is no probability of accused being convicted but at the same time it is also responsibility of court vice versa that in case of dismissal of application, the court has to assign persuasive reasons as to why the charge not seems to be groundless and what more than enough material is available to connect the accused with the crime. Since the entire material is available in the trial court; therefore, we deem it fit and appropriate to send back this matter to the trial court to pass an appropriate order.
10. As a result of above discussion, impugned order is set aside and application moved under section 249-A, Cr.P.C. Will be deemed pending and the learned Judge, ATC is directed to decide application afresh after hearing the applicants and prosecutor and pass a speaking order within a period of one month on the basis of entire material available on record. This Criminal Miscellaneous Application is disposed of accordingly.